Mahe v. Alberta, [1990] 1 S.C.R. 342

The appellants claim that their rights under s. 23 of the Canadian Charter of Rights and Freedoms are not satisfied by the existing educational system in Edmonton nor by the legislation under which it operates. In particular, the appellants argue that s. 23 guarantees the right, in Edmonton, to the "management and control" of a minority-language school. At the time of the trial, in the Edmonton area there were approximately 116,800 students enrolled in the public and separate school systems and approximately 2,900 citizens whose first language learned and still understood was French. These citizens had approximately 4,130 children aged from birth to 19 years, of whom 3,750 were between 5 and 19 years of age. In 1984, the Roman Catholic Separate School Board established a Francophone school under the direction of the Edmonton Roman Catholic Separate School District No. 7. By 1985, the enrollment at the school was 242 students from kindergarten to grade 6, with room for more, and 73 students in the grade 7 and 8 immersion program. The appellants brought an action against the province seeking the following declarations: (1) that there is a sufficient number of children of the French linguistic minority in the Edmonton area to warrant publicly-funded French language instruction and facilities pursuant to s. 23 of the Charter; (2) that the rights granted pursuant to s. 23 entitle the appellants to have their children educated in facilities which are equivalent to those provided to English speaking children, and to be granted powers equivalent to those granted parents of English speaking children; and (3) that the Alberta School Act and the Regulation 490/82 (page 344) passed thereunder, in so far as they are inconsistent with s. 23, are of no force or effect. Both the Court of Queen's Bench and the Court of Appeal accepted many of the appellants' general arguments but declined to grant the specific declarations which the appellants requested. In this appeal, the appellants seek to determine whether the educational system in the Edmonton area satisfies the demands of s. 23. The main issue is the degree, if any, of "management and control" of a French language school which should be accorded to the minority language parents in Edmonton. Held: The appeal should be allowed.

It is true that if the existing legislation has the effect, either directly or indirectly, of preventing the realization of a Charter right then, as this Court has stated on numerous occasions, the legislation should be invalidated. However, it is not clear that the existing legislation in Alberta is a bar to the realization of the appellants' rights. The real obstacle is the inaction of the public authorities. The government could implement a scheme within the existing legislation to ensure that these s. 23 parents and other s. 23 parents in the province receive what is due to them. The problem is that they have not done so.

For these reasons I think it best if the Court restricts itself in this appeal to making a declaration in respect of the concrete rights which are due to the minority language parents in Edmonton under s. 23. Such a declaration will ensure that the (page 393) appellants' rights are realized while, at the same time, leaving the government with the flexibility necessary to fashion a response which is suited to the circumstances. As the Attorney General for Ontario submits, the government should have the widest possible discretion in selecting the institutional means by which its s. 23 obligations are to be met; the courts should be loath to interfere and impose what will be necessarily procrustean standards, unless that discretion is not exercised at all, or is exercised in such a way as to deny a constitutional right. Once the Court has declared what is required in Edmonton, then the government can and must do whatever is necessary to ensure that these appellants, and other parents in their situation, receive what they are due under s. 23. Section 23 of the Charter imposes on provincial legislatures the positive obligation of enacting precise legislative schemes providing for minority language instruction and educational facilities where numbers warrant. To date, the legislature of Alberta has failed to discharge that obligation. It must delay no longer in putting into place the appropriate minority language education scheme.

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